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State v John [2017] PGNC 257; N6947 (18 August 2017)

N6947

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 704 OF 2017
THE STATE

V

WARI JOHN

Kundiawa: Salika DCJ
2017: 18^th August

CRIMINAL LAW – Practice and procedure– charge of unlawful killing – s.302 of Criminal Code Act – deceased started the incident – stabbed by wife – sentenced to 10 years imprisonment – part suspended on conditions.

Case Cited:
Kwalimu Goina v The State (1982) SC230
Lawrence Simbe v. The State [1994] PNGLR 33
Manu Kovi v. The State [2005] SC789
Rex Lialu v. The State [1990] PNGLR 448
The State v. Tuma [2017] N6618
The State v. Kovio [2016] N6461
The State v. Ladiah Kilala & Ors [2012] N5080
The State v. Anita Kelly [2009] N3624
The State v. Bernard Hagei [2005] N2913
The State v. Douglas Mareva [2012] N4805

Counsel:

Ms. Roalakona, for the State
Mr .M Yawip, for the Prisoner

SENTENCE

18^th August, 2017

1. SALIKA, DCJ: INTRODUCTION: The prisoner pleaded guilty to one count of unlawfully killing of John Poi her husband on 9 August 2016, at Yani Village, Gumine District. The charge was laid under S. 302 of the Criminal Code Act.
   

FACTS

2. The State alleges that on the 9 of August 2016 at about 11pm, the accused, Wari John had gone to watch video at a video house at Yani Village. John Poi, the husband of the accused went to the video house looking for her. He was drunk. When he saw her in the house he slapped her and then punched her on her back. The accused went out of the video house and her husband followed her. The accused hit her husband with a stone and then ran away. Her husband followed her with a knife. He ran after the accused and when he caught up with her he held the knife against her forehead and cut her. The accused retaliated and stabbed her husband, John Poi in the chest and caused his death.
3. The State says that when the accused stabbed John Poi on his chest, she unlawfully caused his death thereby contravening section 302 of the Criminal Code Act.
   

THE ISSUE

4. Having pleaded guilty to the charge the Court now has to decide what sentence to impose on the prisoner.
   

THE LAW

5. Section 302 of the Criminal Code says:
   

“A person who unlawfully kills another under such circumstances as not
to constitute wilful murder, murder and infanticide is guilty of
manslaughter.

Penalty: Subject to Section 19, imprisonment for life.

The maximum penalty the court may impose is life imprisonment subject to S.19 of the Criminal Code.

6. The court will however consider the current sentencing trends imposed by the National Court and the Supreme Court to come to a fair sentencing decision. It will also look at case precedents and peculiar circumstances of the case to come to a decision on a sentence.
   
7. In homicide cases wilful murder is more serious than murder and murder is more serious then manslaughter. The prisoner is convicted on one count of manslaughter. The maximum sentence for wilful murder is death and for murder and manslaughter is life imprisonment and that is because taking away a person’s life is a serious thing. Human life is lived only once. Once lost it is lost forever. The maximum sentence is reserved for the worst case and is usually determined when one is dealing with who, why, what, when, where and how questions in other words, the circumstances of the commission of the offence. The sentence is usually determined or arrived at on the circumstances of each case.
   

CIRCUMSTANCES OF THE OFFENCE

8. Circumstances leading to the death of John Poi are captured in the facts already. John had been drinking somewhere and came looking for his wife who was at the video house watching video. When he came he had met the prisoner. The prisoner came out of the video house. John Poi followed her out and chased her to the main road. She threw a stone at him but he did not stop. On the road she stabbed John on his chest and he died at the Gumine Health Centre.
   

PRINCIPLES OF SENTENCE

9. The following factors are usually considered by the Court to determine the appropriate sentence:-
   
   • (a) degree of participation
     • - in this case the prisoner solely participated in the whole incident leading to the stabbing.
     • - John Poi started it all off
       
   • (b) degree of ignorance of the law.
     • - prisoner and her husband are both villagers but they knew the law that it is against the law to kill someone.
       

(c) age of offender

- the offender is about 26 years old

(d) is the offender a first time offender?

• - Yes
  

(e) was compensation paid?

• - Yes, K13,400.00 was paid with 20 pigs, and 6 goats was paid as compensation.
  

(f) has prisoner showed remorse?

• - yes, she regrets what happened and said she was sorry for the death of her husband.
  

(g) did the prisoner co-operated with police?

• - Yes
  

(h) did the offender plead guilty?

• - Yes
  

(i) was there any aggravation offered by the deceased?

• - yes, John came in drunk looking for the offender and found her and there he assaulted her.
• - she ran away from him but he followed her which lead to his death.
  

(j) will a jail term have an effect on the offenders family? Yes

• - the offender is the second wife of the deceased. She has two young children, who she left in the care of the first wife and the first wife has five children of her own and that was going to be a heavy burden on the first wife.
  

(k) the effect of a jail term on her employment?

• - the prisoner is a villager and a subsistence farmer and she will not lose attending to her daily village chores.
  

(l) customary punishment received or compensation paid to the victim.

• - yes, compensation of K13, 400.00 plus 20 pigs and 6 goats was paid as compensation by the offender’s family.
  

CASE PRECEDENTS

10. Relevantly the Supreme Court in Manu Kovi v. The State (supra) said:-
    

“In homicide cases, as with any other offences, the use of a tariff though has its limitations, because the determination of appropriate punishment in each case, is an exercise of discretion, having regard to the seriousness of the offence, the gravity or otherwise of the circumstances of the offence, the personal circumstances of the prisoner which aggravate or mitigate the punishment and the interests of the community in ensuring the punishment achieves its purpose.

11. I have said it before and I say now again that sentencing an offender is a exercise of discretion, taking into account all the relevant considerations and making a decision on sentence. I agree there is no scientific or mathematical formula. Case precedents of similar factual circumstances helps a judge to decide what a sentence is to be.
    
12. The sentencing tariff is to be used as a guide as in the Manu Kovi case which was suggested in 2005. Some 12 years later now, manslaughter offences have not decreased, in fact they continue to increase. Are the sentencing ranges in Manu Kovi case still relevant now? It need to be increased. Sentences for guilty plea cases should be different from trial cases. The Manu Kovi suggested tariffs have been in use for 12 years now but have not served as a deterrent at all. Manslaughter cases continue to rise at will. In my respectful opinion this court should be at liberty to progressively increase sentences from the tariffs suggested in Manu Kovi 12 years ago as there is no decline in the number of unlawful killings. Similarly the Court must be at liberty to impose lower sentences in appropriate cases.
    
13. Counsel for the offender cited the case of The State v. Tuma (2017) N6618 for the proposition that part of the sentence be suspended. In that case the prisoner pleaded guilty to the charge of manslaughter. The deceased in that matter was having an adulterous affair with the prisoner’s wife. On the night of the killing the prisoner caught the man and the wife naked. The offender cut the man with a bush knife on his left wrist intending to hurt him. The incident took place in a remote location in the Madang Province and the man died due to loss of blood. The deceased family was of the view that the deceased brought about his own death in that the pay for his adulterous acts was death and he was a drug taker, a trouble maker and a headache in the community. It was a relief to the community that he was gone for good.
    
14. In the matter of The State v. Kovio (2016) N6461 the deceased and the prisoner were biological brothers. Their respective wives had continuous arguments and fights. Prior to the day and date of the offence, the prisoner had an argument with the deceased’s wife. The deceased was not there then. The deceased learnt of the argument in the afternoon and in the night he went and broke the wall of the prisoner’s house and the prisoner got his spear and speared him on his left thigh. The deceased died from blood loss. The prisoner was sentenced to 6 years but 2 years of that was suspended on conditions that he be of good behaviour for 2 years. He pleaded guilty and got the benefit of a reduction in sentence.
    
15. The point is made and that is that the court has discretion to suspend whole or part of the sentence on conditions and on proper basis. This court will consider whether whole or part of the sentence in this case should be suspended.
    
16. Sentencing for manslaughter offences must be lower than sentences for murder and wilful murder. The court must pay careful attention to:-
    
    • (i) the circumstances leading to the death ; and
    • (ii) the way death was actually caused ;when considering the

appropriate sentence. (see Rex Lialu v. The State (1990) PNGLR 448).

17. In considering what an appropriate sentence in manslaughter cases should be the following factors should be considered:-
    
    • (a) circumstances of the death and the way the death was actually caused.

- in this case the facts have been laid out.

(b) was the assault on the deceased vicious or not vicious.

• - It was vicious
  

(c) it was vicious. was there any deliberate intention to harm.

• - yes.
  

(d) what was the nature of the assault

• - he stabbed him on the chest with a knife.
  

(e) was the injury that caused death directly from an attack or assault or was it caused by a fall on an object.

• - yes, a direct knife attack.
  

(f) was injury caused by a weapon or by the person.

• - by the prisoner with a knife.
  

(g) was injury by fist.

• - No
  

18. A sentence in my respectful opinion should be decided on its own peculiar facts and circumstances (see Lawrence Simbe v. The State [1994] PNGLR 33). The use of sentencing tariffs has its limitations with respect, and should only be used as a reference tool by a sentencing authority in considering an appropriate sentence.
    
19. The sentencing tariffs in the Manu Kovi case, does allow for penalty variations with those who plead guilty and those who plead not guilty. The courts do recognise the benefits of a plea of guilty to an offender who pleads guilty to an offence. A plea of guilty is a clear demonstration of an accused’s acceptance of his or her actions which were wrong and his or her profound regret for what happened. It may be an expression of genuine remorse and not by talk only that he or she is remorseful about what happened. A plea of guilty saves time and costs to the court and the prosecution. A plea of guilty is indeed a mitigating factor – which must result in a reduced sentence. In considering how much reduction is to be given for a plea of guilty is again at the discretion of the court after examining the circumstances giving rise to the plea of guilty.
    

MITIGATING FACTORS

20. The following are mitigating factors:-
    

(a) the prisoner is a first time offender.
(b) she pleaded guilty.
(c) she was the sole attacker.

AGGRAVATING FACTORS

21. The following are aggravating factors:-
    
    • (a) the prisoner used a weapon to stab her husband
    • (b) she landed the knife in his chest
      

ALLOCATUS STATEMENT

22. The prisoner was profusely remorseful for what happened. She shed tears of regret and sorrow for the death of her husband. She said she was sorry for the first wife who is now going to bear the burden to raise her two children and his own five (5) children.
    

SENTENCE

23. The end result in all homicide cases is that a human life is lost. Section 35 of the Constitution says:-

35(1) No person shall be deprived of his life intentionally except:-

(a) in execution of a sentence of a court following his conviction of an offence for which the penalty of death is prescribed by law; or

(2) Nothing in Subsection (1) (b) relives any person from any liability at law in respect of the killing of another.

Life is a gift from God and no one has the right to end another person’s life. Taking away a person’s life is repulsive and despicable. The court must be seen to be protecting human life because life is lived only once in this world. The sanctity and value of life is more precious and valuable than material wealth silver, gold or diamond and this Court takes serious notice of that undeniable fact. No amount of compensation in monetary terms, regret or remorse is ever going to restore a life that is lost. (see The State v. Ladiah Kilala & Ors [2012] N5080, The State v. Anita Kelly [2009] N3624. John Poi is now gone forever. That is the reality in life.

24. I agree with the sentiments expressed by the National Court in The State v. Bernard Hagei [2005] N2913, where the court said:-
    

“There are so many wanton killings happening in the country as well, as though life is some form of commodity or a replaceable item that can be borrowed or bought from the hardware shop in town. Killings in this country are becoming more daring without fear and there is no respect for sanctity of life. Brutal horrific and cold blooded killings are becoming too frequent.”

There are indeed far too many cruel, violent, deliberate, wilful, unjustifiable and senseless killings as happened in this case. There appears to be no end in sight for such killings.

25. The National Court in The State v. Douglas Mareva [2012] N4805 said:-
    

“Whatever sentences the Court decides to impose must reflect the purposes of the criminal justice system that should balance over between the offender, the victim and the effect it may have on the community.”

26. One purpose for imposing a sentence is that one will have an opportunity to look back at his or her actions, and work on those weak parts of his or her habits and character with a view to reform and rehabilitate oneself.
    
27. The sentence also plays a role in educating our communities to live peaceful lives with one another and to deal with issues in a civilised manner. Our people must identify and practice proper standards of conduct in the community, that includes proper respect and tolerance for one another and have common decency. The Court should be seen as an educational tool in that sense.
    
28. The Court also sentences offenders to imprisonment to prevent reoffending by the same person. In some cases the Court sends offenders to serve jail terms to ensure peace and safety in the community is safe guarded.
    
29. Another purpose for sentencing is to try and reconcile the parties so that previous good relationship is restored. Another purpose for sentencing an offender is the need for retribution that is the need for the offender to be punished for the crime he or she committed. The offender must realise that he or she has committed a crime, in some instances, a very serious crime and that he or she deserve to be punished for doing wrong.
    
30. I take into account the case precedents referred to by counsel to assist me. I have referred to some of them in the decision. This case falls into category two (2) of the Manu Kovi at the lower range and I am guided by that decision although with respect, I am of the opinion that it is now outdated.
    
31. I am reminded by what the Supreme Court said in Kwalimu Goina (27 July 1982) SC 230 when it said:-
    

“We are mindful of the increase in crimes of violence and the undisputed public concern about such offences. Such conduct will be met by firmness on the part of the courts and we give warning that sentences will increase substantially.”

32. I consider John Poi starting the whole incident as an extenuating factor. Accordingly, considering all the factors mitigation and aggravating I sentence the prisoner to 10 years imprisonment in hard labour. She has been in custody for 1 year 1 week. That is taken off for time in custody. The balance is 8 years, 11 months 3 weeks. I will further suspend 5 years 11 months on conditions that she will be of good behaviour for 2 years after her release. The time she is to spend in custody is 3 years 11 months imprisonment in hard labour.
    

Sentenced accordingly.
________________________________________________________________
The Public Prosecutor : Lawyer for the State
The Public Solicitor : Lawyer for the Accused